New Mexico
New Mexico recognizes a right of publicity at common law, but only as equivalent to a privacy-based misappropriation claim.
Statute
NO
Common Law - Right of Publicity
YES
The court has recognized the right of publicity is equivalent to the tort of appropriation of name or likeness.
Moore v. Sun Pub. Corp., 881 P.2d 735 (N.M. 1994)
Common Law - Right of Privacy-Appropriation Tort
YES
The state recognizes both a right to privacy and the appropriation branch of that tort. A federal district court has recognized the misappropriation tort as articulated by the Restatement (Second) of Torts § 652.
Hubbard v. Journal Pub. Co., 368 P.2d 147 (N.M. 1964)
McNutt v. New Mexico State Tribune Co., 538 P.2d 804 (N.M. 1975)
Benally v. Hundred Arrows Press, Inc., 614 F. Supp. 969 (D.N.M. 1985)
Post-Mortem Right
UNCLEAR
No case has directly addressed the question. However, the New Mexico Court of Appeals, the state’s highest court, has suggested that appropriation claims may survive death even though other privacy-based claims do not.
Smith v. Artesia, 108 N.M. 339 (1989)
Gruschus v. Curtis Publ’g. Co., 342 F.2d 775 (10th Cir. 1965)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO
McNutt v. New Mexico State Tribune Co., 538 P.2d 804 (N.M. 1975)
Does the law protect persona?
No case has considered the issue.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
MAYBE
Although no state court has specifically addressed the question, a federal court case dismissed a misappropriation claim because the subject at issue was not used for a commercial purpose. The court seemed to suggest that the claim may be limited to the context of advertising.
Benally v. Hundred Arrows Press, Inc., 614 F. Supp. 969 (D.N.M. 1985)
First Amendment Analysis
New Mexico recognizes a newsworthiness defense and a federal district court considering an appropriation claim under New Mexico law suggested that relevant, non-exploitative uses are privileged as well.
McNutt v. New Mexico State Tribune Co., 538 P.2d 804 (N.M. 1975)
Benally v. Hundred Arrows Press, Inc., 614 F. Supp. 969 (D.N.M. 1985)
Other Commentary
It is an open question whether appropriation claims fall under the four-year statute of limitations period as actions based on injuries to property, or the three-year statute of limitations that applies to other privacy-based claims. See Vigil v. Taintor, No. A-1-CA-36634, 2019 WL 6768676, n.1 (N.M. Ct. App. Dec. 11, 2019).